The stipulations in a settlement deed do not confer absolute rights to a transferee, rendering subsequent sale deeds void if executed without such rights.

JUDGMENT :

(A. Badharudeen, J.)

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908.

2. In this appeal, the 1st plaintiff in O.S. No. 569 of 2010 on the files of Principal Sub Court, Irinjalakuda assails decree and judgment in the above case dated 31.03.2015 whereby the suit filed by plaintiffs 1 and 2 was dismissed by the trial court.

3. Respondents in this appeal are the 1st defendant and the 2nd plaintiff.

4. Heard the learned counsel for the 1st plaintiff/appellant and the learned counsel appearing for the 1st respondent/1st defendant in detail. Perused the pleadings, evidence, and the decisions placed by the learned counsel for the 1st defendant/1st respondent.

5. For effective and easy discussion, the parties in this appeal will be referred to as ‘plaintiffs’, ‘1st defendant’, and ‘2nd defendant’ hereafter.

6. The plaintiffs’ case in brief:-

Plaintiff Nos. 1 and 2, who are the male children born to Mulangil Krishnan and Devaki - the 2nd defendant would assert right over the plaint schedule property on the strength of a settlement deed No. 2372/1972 of Mala S.R.O. executed by the parents. According to the plaintiffs, after completion of the educational and marriage expenses of their sisters, the plaint schedule property was allotted to them, as per the settlement deed.

7. The contention raised by the plaintiffs further is that despite having no absolute right over the plaint schedule property to the 2nd defendant, the 2nd defendant executed sale deed No.1666 of 2009 in favour of the 1st defendant and assigned the plaint schedule property to the 1st defendant and therefore, the sale deed is illegal. Accordingly, plaintiffs prayed to adjudge sale deed No.1666 of 2009 of Annamanada S.R.O. dated 10.08.2009 as a void instrument, and order the same to be delivered up and cancelled. In addition, permanent prohibitory injunction to restrain the 1st defendant from alienating, creating any charge, or executing any further documents on the strength of the sale deed No.1666 of 2009 is also sought for.

8. The 2nd defendant did not file written statement and she was set ex-parte. While so she died during the pendency of the suit.

9. The 1st defendant filed written statement and resisted the suit. According to the 1st defendant, the 2nd defendant obtained absolute right over the plaint schedule property on the strength of the settlement deed No.2372 of 1972, and accordingly, the plaint schedule property was properly sold by the 2nd defendant in favour of the 1st defendant. Therefore, the sale deed executed by the 2nd defendant in favour of the 1st defendant requires no interference. She also denied the incapacity pleaded as against the 2nd defendant to execute the sale deed.

10. The trial court raised necessary issues and tried the matter. PW1 was examined and Exts. A1 to A8 were marked on the side of the plaintiffs. First defendant was examined as DW1 and Exts. B1 to B13 were marked on the side of the 1st defendant. However, the trial court dismissed the suit holding that Ext.B2 - the sale deed (copy of the same is Ext.A1) as a genuine document supported by consideration.

11. The learned counsel for the 1st plaintiff vehemently challenged the finding of the trial court by reading the recitals in Ext.A2 settlement deed No.2372 of 1972, and it is specifically pointed out that Ext.A2 was executed by Krishnan (father) along with Devaki - the 2nd defendant (his wife) with a view to ensure the education, marriage, etc, of the female children, and accordingly, a right was given to the 2nd defendant to sell the properties covered by the settlement deed or portion thereof during the lifetime of Krishnan, for the said purposes and in such contingency, Krishnan also to be joined as a party to the said conveyance as a witness during his lifetime. Further right to sell the property after the death of Krishnan also provided in Ext.A2 for the said purpose. Apart from that no absolute right tran